Kitto v Medalion Homes Ltd (in liq)
[2000] QCA 288
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- Unreported Judgment
- Appeal Determined (QCA)
- Kitto v Medalion Homes Ltd (in liq)[2000] QCA 288
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Kitto v Medalion Homes Ltd (in liq)[2000] QCA 288
Kitto v Medalion Homes Ltd (in liq)[2000] QCA 288
COURT OF APPEAL |
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DAVIES JA |
|
THOMAS JA |
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MULLINS J |
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No 10527 of 1999 |
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FRANCIS JAMES KITTO | Appellant (Plaintiff) |
and |
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MEDALION HOMES LIMITED (IN LIQUIDATION) |
First Respondent (First Defendant) |
and |
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WORKCOVER QUEENSLAND | Second Respondent (Defendant by Election) |
BRISBANE |
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DATE 20/07/2000 |
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JUDGMENT |
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DAVIES JA: This is an appeal from a judgment of the Chief Justice given in Chambers on 1 November last refusing the appellant leave to proceed against the first respondent. Leave was necessary under section 471B of the Corporations Law because the respondent is in liquidation. The appeal is therefore against the exercise of a discretion with the difficulties for the appellant which that involves.
The action which the appellant instituted against the first respondent is one for damages for personal injuries arising out of an injury which to put it neutrally appears to have occurred in or prior to September 1994. The date on which that injury arose is relevant to the limitation period under the Limitations of Actions Act 1974 and was a relevant factor in the exercise of the discretion to which I have just referred.
The material placed before his Honour by the appellant, on this application, was very limited indeed. It consisted of three affidavits by two solicitors acting for the appellant to the first of which was exhibited two unsworn statements by the appellant.
Those statements assert a psychiatric condition occurring for the first time about one week prior to 19 September 1994 arising out of tension caused by dishonesty on the part of his employer, the first defendant and first respondent.
There does not appear to be any doubt that about that time the appellant had a psychiatric condition. There is, however, considerable doubt about when it arose and as to its precise cause or causes.
Against that evidence was an affidavit by Christopher Charles Bosse, a fellow employee of the appellant deposing to the fact that the appellant exhibited symptoms of the kind, which the appellant said arose for the first time during the week or approximately one week prior to 19 September 1994, Mr Bosse said by the time he resigned on 8 September 1994.
Mr Bosse was not cross-examined on the application and there being no sworn evidence from the appellant there was no opportunity to cross-examine him. The difficulty facing the appellant under the Limitation of Actions Act is that the action having commenced only on 11 September 1997, he can recover damages only for an injury which occurred after that date in 1994.
Moreover, it is now too late for him to apply for an extension of time under section 31 of that Act. That section applying only when a material fact of a decisive character relating to the right of action was not within the means of knowledge of an applicant, him, until after approximately September 1996 whereas it is plain here that all material facts were within his knowledge some time, at least, in September 1994.
The result of this, before the learned primary judge would have been that even if leave were granted and the appellants action was successful he would be entitled to recover damages only for so much of his injury, if any, as arose after 11 September 1994 and on the sworn evidence of Mr Bosse it seems that all of his symptoms had arisen before that date.
Moreover, it appears from the material before the learned primary judge there was a refund due to Workcover Queensland of something over $21,000 and consequently the appellant's damages would have had to have been substantially more than that to justify him in bringing an action.
The result of this, it seems to me, is that there was nothing erroneous in the judgment of the learned primary judge in this matter and were this appeal to be determined solely on the evidence before the learned primary judge I think the appeal would have to have been dismissed.
The appellant, however, seeks to adduce further evidence consisting of a further affidavit by himself and an affidavit by Mr Bosse. The question arises before us as to whether, in fact, we should now admit those affidavits; objection having been made to them by Mr Martin for the respondent.
Mr North SC for the appellant has submitted that the decision in this matter having not been from a final judgment within the meaning of rule 766(2) of the Uniform Civil Procedure Rules, that further evidence may be given before this Court without special leave and he referred us to two decisions of the High Court; Hall v. Nominal Defendant (1966) 117 Commonwealth Law Reports 423 and Carr v. Finance Corporation of Australia Limited (1981) 147 Commonwealth Law Reports 246.
The effect of which is that the question whether a judgment is final or interlocutory must be determined by its legal rather than its practical effect. He submits in consequence that, though the practical effect of the order made by the Chief Justice here was to terminate the possibility of a successful action by his client, that was not its legal effect.
Mr Martin, for the respondent, responded to that by submitting that, in effect, those cases do not apply to rule 766 primarily because of the decision of this Court in De Innocentis, CA No 12032 of 1998, judgment delivered 24 September 1999, which concerned, in effect, the meaning of decision in rule 765 of those rules.
Whatever effect De Innocentis' decision has had, it does not seem to me to affect the application of the decisions as to which I have just referred of the High Court to the question of what is a final judgment which is the term used in rule 766(2).
Accordingly, I would conclude that further evidence may be adduced in this appeal without special leave being necessary. For that reason and because particularly of the subject matter of Mr Bosse's affidavit I would admit the further affidavits of the appellant and of Mr Bosse.
The appellant's affidavit, however, does not take the matter much further, in my view, than the previous material which was before his Honour the Chief Justice. I think it is correct, as Mr Martin submitted in his written outline, that the first 13 paragraphs of the affidavit say nothing new, that the affidavit significantly does not appear to contradict the evidence of Mr Bosse, in his earlier affidavit, as to the emergence of symptoms prior to 8 September 1994.
What it does appear to do is depose a worsening of symptoms on or after 18 September 1994. The appellant says that although prior to that date he was feeling stressed at work he was usually able to relax once he got home and that after that date his condition worsened. But it is unclear whether that worsening constituted a separate injury or simply a natural progression of the condition originally caused by stresses at his work at an earlier date.
Mr North referred us to a report by Dr David Alcorn, a consulting psychiatrist dated 23 August 1999 which was before his Honour in which the doctor really, in effect, said that without further investigation it really could not be said whether the condition which he had on 18 or 19 September developed at about that time or simply a progression of something which had occurred earlier.
More relevantly to the application and more helpful to the appellant is the affidavit of Mr Bosse. Contrary to his earlier affidavit he now says that he did not have any real idea about dates. He was told by the Workcover interviewer who came to see him that he, Bosse, had commenced working with the first respondent on 28 July 1994 and that he had left on 8 September 1994. He told the officer from Workcover that he had no recollection of those matters but nevertheless they found their way into his affidavit.
He says, in fact, that it could well have been on 18 September 1994 that he left his employment. He also says now that he is unable to assert when it was during the period of his employment which was a period of about six weeks that he noticed Mr Kitto, the appellant, was starting to lose his enthusiasm. He is also unable to recall when it was that the appellant told him he felt tired, sick and lethargic to which he had earlier deposed or when he observed or when Mr Kitto told him that he got the shakes.
He was similarly unable to say when it was that the appellant had advised him that he had been vomiting and not eating and that he was smoking heavily. The result of all this, in my view, is that there now appears to be no evidence contradicting the appellant's, if one accepts Mr Bosse's later affidavit and he has not been cross-examined on it; no evidence contradicting the appellant's evidence that these symptoms arose on 18 or 19 September or within a week or so prior to that and certainly after the commencement of the limitation period.
For those reasons, it seems to me that not only should these affidavits be admitted but as a result of Mr Bosse's affidavit an order should now be made granting the appellant leave to proceed. I would accordingly allow the appeal, set aside the order made below and substitute an order giving the appellant leave to proceed against the first respondent.
As to costs there was some discussion about that during the course of argument and as a result of that discussion I would be inclined - although I am prepared to hear argument on the question if necessary - I would be inclined to make an order that the costs both here and below be costs in the cause in the action. I add the leave should be nunc pro tunc.
THOMAS JA: I agree. I would add that I think it appropriate that we receive further evidence in this matter under rule 766 sub-rule 2. Special leave is not necessary in order to do so but there remains in the Courts a discretion to admit or not to admit such evidence.
The further evidence here shows that there is indeed a serious question to be tried as to the time by which a serous condition was manifest in the plaintiff. There is therefore an unacceptable risk of a miscarriage of justice if the present order stands.
The further material also shows a serious risk that the Court below was misled by the material that was there read. It is not necessary to determine the facts here but the overall position is that the plaintiff should have a hearing where the necessary facts can be determined and that leave should be granted to enable this to happen.
I agree with the orders proposed by Justice Davies.
MULLINS J: I agree with the orders proposed by Justice Davies and the reasons both of Justice Davies and Justice Thomas.
DAVIES JA: The orders will be as I have indicated.
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